Occasionally, I see some commenters argue that attempts to restrict speech are chiefly a trait of the left (even defined broadly not just to include the hard Communist-or-near left) rather than of the right. Here's an example, from a recent thread:

I don't think that's true that the right is "just as guilty" as the left when it comes to censorship. Most of the examples of government attempts to suppress political speech seem to have come from the political Left. Wilson and Roosevelt were particularly notorious for it during WWI and II. We had Al and Tipper Gore's attacks on the music industry during my childhood but I honestly cannot recall any similar or comparable attempts at censorship by the political right.

This seems to me to be a mistake. My sense is that at least from the 1950s to somewhere around the 1980s, the left has generally (not entirely, but generally) been more speech-protective than the right; since the 1980s, matters seem to have roughly equalized (recognizing that it's impossible to measure things precisely), but there still remain plenty of calls for restrictions from the right.

Just to give some examples, the defenders of Communists' and near-Communists' speech in the 1950s were, to my knowledge, mostly associated with the left (and not just the Communist left); the restricters were both on the left and the right, but the defenders were mostly on the left.

The defenders of protection for sexually related speech, and not just pornography but serious literature and even political advocacy, have been mostly on the left, and critics of such protection have been mostly on the right. (See, e.g., Sex and God in American Politics: What Conservatives Really Think, Pol'y Rev., Summer 1984, at 12, 24 ("I don't think the advocacy of homosexuality really falls under the First Amendment any more than the advocacy or publication of pornography does." (quoting Irving Kristol)). The advent of the left-wing feminist calls for restricting sexually explicit speech in the 1980s has evened the matter somewhat, but I'd say that on balance the right to engage in sexually themed speech still gets more support from the left than from the right.

From the 1980s until now, campus restrictions on allegedly bigoted speech have been largely the province of the left (though many on the left have opposed them). Conservatives have generally insisted that even epithets ought to remain protected, at least outside the rubric of fighting words. But in the 1970s, many conservatives took the view that profanities and epithets should not be protected, including in university newspapers, see, e.g., Papish v. Board of Curators of University of Missouri, 410 U.S. 667 (1973). My sense, though I am not an expert on this, is that in the 1960s and the 1970s many conservatives were willing to see a fairly broad range of restrictions on what was seen as offensive or radical campus speech, while liberals generally supported protecting it.

Likewise, the movement to ban flagburning has been mostly a conservative movement. The (fortunately quite rare) calls to restrict anti-war speech have been chiefly on the conservative side. Calls to restrict violent rap lyrics that seem to urge attacks on police officers have often (my sense, generally) come from the right, see, e.g., Chuck Philips, North Steamed at Ice T; He Wants Time Warner to Face Sedition Charges Over Rap Song, L.A., July 2, 1992 (describing Lt. Col. Oliver North's suggestions to this effect), though calls to restrict violent music and videogames more broadly seem to have been pretty evenly balanced.

There are some areas, of course, where calls for speech restrictions come mostly from the left and calls for speech protection mostly from the right. The resistance on campaign finance speech restrictions has mostly -- though not entirely -- come from the right. Similarly, at least on the Court, as to the resistance to speech restrictions on judicial candidates, and the resistance to the Fairness Doctrine (which restricts some speech to advance other speech, and at least sometimes is urged by some liberals precisely because they dislike the current tenor of broadcast speech). The resistance to broad and vague "hostile environment" speech restrictions has generally come from the right, though some on the left have joined it, and many on the right have sat it out. And restrictions on anti-abortion speech, including restrictions that go beyond simply banning the blocking of abortion clinics, have generally come from the left.

Nonetheless, the big picture is both the left and the right calling for some speech restrictions, and opposing other speech restrictions. One may certainly support the right's preferred speech restrictions and oppose the left's, support the left's and oppose the right's, support both, support neither, or support some from each side (most of us would endorse some speech restrictions, even as we would oppose others). But there's little basis, I think, to claim that "Most of the examples of government attempts to suppress political speech seem to have come from the political Left."

Honestly, I don't know how out of touch with reality one needs to be to really think that censoring speech is a primarily leftist thing.

Hello?

I mean, in addition to the things cited above, there are entire movements on the right to attack the ACLU for precisely this. While often these are afterthoughts in the attack on its SoCaS views, how many times have you heard sneering over their defenses of Nazi parades and NAMBLA?

Who is demanding that Harry Potter, and host of other books, be banned from school libraries? Lefists?

It's an argument that really makes you question the integrity of the person who makes it.

Well, in defense of the Republicans of 1950, although not all of them by any means:

Statement of Seven Republican Senators

1. We are Republicans. But we are Americans first. It is as Americans that we express our concern with the growing confusion that threatens the security and stability of our country. Democrats and Republicans alike have contributed to that confusion.

2. The Democratic administration has initially created the confusion by its lack of effective leadership, by its contradictory grave warnings and optimistic assurances, by its complacency to the threat of communism here at home, by its oversensitiveness to rightful criticism, by its petty bitterness against its critics.

3. Certain elements of the Republican Party have materially added to this confusion in the hopes of riding the Republican party to victory through the selfish political exploitation of fear, bigotry, ignorance, and intolerance. There are enough mistakes of the Democrats for Republicans to criticize constructively without resorting to political smears.

4. To this extent, Democrats and Republicans alike have unwittingly, but undeniably, played directly into the Communist design of "confuse, divide and conquer."

5. It is high time that we stopped thinking politically as Republicans and Democrats about elections and started thinking patriotically as Americans about national security based on individual freedom. It is high time that we all stopped being tools and victims of totalitarian techniques—techniques that, if continued here unchecked, will surely end what we have come to cherish as the American way of life.

Note that the commenter said, "Most of the examples of government attempts to suppress political speech seem to have come from the political Left." (emphasis added) Many of the counterexamples given are of efforts from the right to (1) suppress expressions that are not primarily political and not targeted because of their political content, if any (e.g., sexually related speech), (2) not speech but rather expressive conduct (e.g., flag burning). If the comment is taken narrowly and if we don't go all the way back to McCarthy, then I think there is some truth in it.

Speaker Ban (1963-1966)
The "Act to Regulate Visiting Speakers" was passed by the North Carolina State Legislature in June 1963. The law specified that known members of the Communist Party, or those who had pleaded the Fifth Amendment when asked under oath if they were Communists, would not be permitted to speak at any of North Carolina's state-sponsored institutions. Many students, faculty, and administrators saw the bill as a direct attack on free speech and academic freedom on the UNC campuses. The law was challenged on several occasions, most notably when Herbert Aptheker and Frank Wilkinson spoke from a Franklin Street sidewalk to students gathered on campus on the other side of a low stone wall. A North Carolina court overturned the law in 1968.

I'm not sure that comparing hate speech to obscenity is quite accurate. I don't think the court recognizes any exceptions to free speech because they are offensive, but there are certainly obscenity exceptions. What falls under that is certainly open to interpretation, but it does not seem that much of a stretch to consider some porns of pornography to be obscene.

many of those leftists defending the "speech rights" of the communists were ideologically committed to the cause-it wasn't a principle, it was a belief in the speech driving the defense of the speech. in its way, no different from the Rosenbergs and their peculiar "patriotism". forward to the present, when a mob at Columbia shouting down someone they disagree with is somehow conflated with free speech.

Thank you for this post. Often time I think it is more difficult for readers to know the big picture perspective of a blogger then the blogger realizes. It helps to occasionally get a more comprehensive review of your feelings on an issue.

ed o---------Wins the prize. Motivation means everything. That is why the ACLU has such problems. It is their underlying motivation. Just like International ANSWER a know Communist group marches under the guise of being aganist racism. Reminds me of the Commies in Viet Nam and their propaganda ranting about the racism in the USA and why should Blacks fight for a racist country. Some of us were not born yesterday. Just put me down as suspicious because I have seen it all before. But I would not supress the speech. I would hope enough citizens would see it for what it is. Although ,I would not bet on it anymore. I think it is going to take a little more pain unfortunately.

Kent: As I noted, many on the right were willing to restrict not just pornography but advocacy of the propriety of homosexuality, as well as sexually themed serious literature (not quite political speech, but not far removed, given that literature conveys ideas that influence political judgments). For a similar example, see Ratchford v. Gay Lib, in which the University of Missouri tried to deny recognition to the Gay Lib club. Chief Justice Burger's dissent from denial of certiorari seemed to strongly suggest that Missouri indeed had the power to exclude such clubs — because the risk that gay members would engage in forbidden sex with each other justified the burden on their ability to gather for political and ideological purposes.

As to the theory that conservatives' opposition to flagburning can be distinguished because flagburning isn't really speech, I wonder whether the conservatives would stand on bans on the waving of flags (whether the Confederate flag, the American flag, or what have you). My sense is that they would quickly recognize — as has 75 years of Supreme Court precedent, dating back to one of the first two Supreme Court decisions striking down government action on freedom of expression grounds — that flagwaving is a form of communication, and ought to be protected as communication (at least when the government tries to suppress it because of its message). And if that's so, it's hard to deny the force of the similar argument as to flagburning (at least when the bans on flagburning stem from the offensive message of flagburning, rather than from a fear of brush fires).

Finally, I should also add to the list restrictions on government employee speech, including on political speech by employees. Conservatives have generally been far more open to such restrictions, and liberals far more skeptical. Nor can conservatives argue, I think, that firing someone for his speech isn't really a speech restriction, but just a refusal to deal with him — unless they're willing to abandon opposition to speech codes on the grounds that expelling someone for his speech isn't really a speech restriction, but just a refusal to deal with him.

I think that if you cite "restrictions on anti-abortion speech" you should acknowledge the extent to which the current administration has gone to limit any mention of birth control in all sorts of venues, particularly in foreign aid, Aids awareness etc. Certainly there is at least an equity in the polarized positions on this subject.

I think Prof. Volokh hass hit on a good theme here... but before going into the legalities (who most dislikes expressive conduct? ineherently expressive conduct? charitable solicitations? who best balances government interests? are libs or conservatives more likely to take a content-neutral approach?) I think there's a pretty good rule of thumb:

People reflexively want to get rid of speech they don't like.

Whenever you see someone supporting speech they are ideologically opposed to, simply on principle, you have found someone who truly supports free speech.

I have always admired the ACLU for just that reason (to borrow a quote, it's the principle, stupid). I know there are many principled conservatives who are ardent free speech supporters. So what is the conservative analogue for the ACLU?

Eugene, I agree with all your points in this thread, except the last. One, I'm not sure that conservatives generally have been more open to speech restrictions on government employees. To the extent they are, I would think it's more a matter of who has been in power most in the executive branches of government in recent years, not any inherent ideological bias one way or the other. There are plenty of examples of liberal restriction of government employee speech, from the absurd "niggardly" example a few years ago to "hostile workplace" laws and the like.

Substantively, government regulation of its employees' speech is not just "refusing to deal" with the employee, and my recollection is that this is not the basis of the Supreme Court's holdings on the topic. Government employees are agents of the government, and the government has the authority to have its own point of view, and to promote it, and to require its agents to put forth that view when performing the duties for which the government pays them a salary. The government has a freer hand in regulating such speech because it is functioning more as an employer, not as a government.

Conservatives suppress unwelcome ideas by trying to get government entities (which they tend to control) to label those ideas as threatening to national morals or security. They prefer to silence their idological opponents through the force of law, and excuse it by appealing to a desire for order.

Liberals try to suppress unwelcome ideas by trying to get educational institutions and the press (which they tend to control) to label those ideas as "intolerant". They prefer to silence their ideological opponents through the force of an outraged mob, and excuse it by appealing to the principle of government by the people.

I think theres a difference between the politically active left and liberal judges. Liberal judges are still committed to a broad interpretation of free speech (much broader than conservatives), and even though I think the left (feminists, political correctness...) is a threat, I still don't think its as bad as the religious right.

I fear that ideologues of either side will always suppress some speech when they can. This is surely in part a fear that freedom may cause individuals to open their eyes and make choices contrary to their ideology.

The greater threat simply depends on the culture of the time and place. When anticommunism washed over America, conservatives were the greater threat. In a primarily liberal milieu, such as some universities, liberals will be a greater threat.

Let's not forget attempts to suppress speech by lawyers. Read the introduction from the best selling book (in the 1960s), How to Avoid Probate, by Dacey. The New York County Lawyers Association obtained an injunction against sale or distribution of the book in New York. Ultimately this lawyer assault on free speech was overturned by the New York Court of Appeals. Matter of New York County Lawyers Assn v Dacey, 28 AD2d 161, 173-174, [Stevens, J.P., dissenting].

A few years later, with another book, Dacey took on the insurance industry. But even this bunch of crooks didn't have the nerve to try and get an injunction against his book.

In 1998 the lawyers were at it again when the Texas Unauthorized Practice of Law Committee was investigating NoLo Press. Is publishing a book the same as practicing law?

After posting a civil discourse on the issues, you finished with "So what is the conservative analogue for the ACLU?" Forgive me if my take on this is not what was intended, but it seemed to me like it was meant to be a snarky poke in the eye to conservatives.

Regardless, did you mean for this to be an admission that the ACLU is a left-wing organization?

One admirable example of a truly neither liberal nor conservative (or, perhaps, both) organization dedicated honestly to free speech is the Foundation for Individual Rights in Education (FIRE) at http://www.thefire.org/.

Kovarsky: Have right-wingers at the FCC been suppressing political speech? I missed that story. Do you mean Howard Stern being able to say the 7 dirty words on satellite and cable TV and radio, but not free TV and radio? No, that is not comparable.

It is perhaps a good test of the dedication to principle of a civil rights organization to examine how many odious cases it has undertaken, how many diametrically opposed clients it has served. FIRE's list of cases seems remarkably one-sided. Feel free to correct my impression.

The Snark was a Boojum, you see? I think the ACLU question is a fair one. I've been a member for some time, and I've no doubt that it's largely funded and staff by lefties, often to the organization's detriment.

So what is the conservative analogue? FIRE is a great organization, but it doesn't fit the bill. Its First-Amendment mission is a limited one: "defending individual rights in higher education." Do they have a record of defending campus hippies?

Having lived and worked under Hatch Act restrictions on my political rights for 25 years, I definitely side with PATHMV's comments. It certainly made my life easier to not have to fight for or against any particularly partisan viewpoint within the workplace. There was enough carping about political appointees 'burrowing' into the establishment anyways.

What little respect there is for government these days would go right down the toilet if half of the government employees were free to speak their minds in public. As it is, we only wait until they retire to get the 'inside story' books on conspiracies from UFOs to the JFK assassination.

I think youre putting too much emphasis on the current supreme court; thats not representative of liberal judges as a whole, or of the history of the supreme court. I think the odds are still very good that a liberal judge is going to have a much more broad interpretation of free speech. I mean, its gotta be that way just due to the difference between a liberal interpretation and the more strict constructionist view.

Im not really very surprised by the results. I would have figured that Breyer would be in the lower half (he's been a disappointment), although I wouldnt have thought he'd be at the bottom. Thomas being so high is a surprise, but I have to wonder how much of that is due to him being good on cases involving limiting Fed gov't power as opposed to state gov't power (Im not familiar with the details of all the cases). It is hard to argue with results from almost a decade though, so maybe Im wrong about him. I know Scalia isnt too bad unless it has something to do with sex heh. Where everyone else is is pretty much what I would have expected.

I think when youre considering how democrat nominated judges compare to republicans, you have to consider the impact a democratic senate had on what judges ended up on the court too (Kennedy would be the best example of that).

No, its based on cases Ive read about over the years, watching judges interviewed, and on the positions taken by liberal civil rights advocates and scholars vs conservative ones... I did see a survey once that I think showed the impact of George W's judges on the federal judiciary (and Clintons and George senior's), and it showed that W's has moved the federal courts in a more conservative direction. That was overall though and not just about free speech. And I have to say I think that it was done by a liberal interest group.

I admit thats its more complicated than just saying liberal judges or judges appointed by democrats are better on free speech than republicans. I still think that on average thats true. But I guess somebody would have to do a study like yours to be sure.

Theres also advertising and 'sexual harrassment'... where liberals tend to be kinda weak. So it depends on what kind of free speech too.

While flag burning may be "conduct" rather than "speech" in the narrow sense that language is not involved, those who wish to ban flag burning are unquestionably trying to ban a form of political speech, not conduct. To see this, look at the reasons they give for banning flag burning - they ALWAYS have to do with the symbolism of burning the flag. To my knowledge they have NEVER advanced a reason of another sort, e.g. that it is a fire hazard or a waste of valuable material or that the smoke is hazardous to passers-by. The clincher is the fact that flag-burning is considered entirely appropriate when it has no political content. I refer to Title 4, Chapter 1, Section 8 of the US Code, entitled "Respect for the Flag", of which paragraph (k) reads:

(k) The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

As far as I know, the proponents of bans on flag-burning do not propose to repeal this section and indeed are generally proponents of the US Flag Code. In other words, proponents of the ban on flag-burning propose to ban it ONLY when it constitutes political speech.

For examples of right-wing suppression of free speech in universities subsequent to the McCarthy Era, I suggest the firings of Michael Parenti and others at the University of Vermont in the 1970s. One account is here.

FIRE has mostly defended folks from PC-ish sorts of attacks of free speech. That being said, they have repeatedly defended the free speech rights of left-wing protesters on campus - for example, anti-war protesters confined to "free speech zones". So far, FIRE has done a good job of defending all comers from censorship, in spite of the personal feelings of their staff. Many of the problems some have with the ACLU is that they try to meet this kind of objective goal, but they sometimes fall short . I'm not saying that walking this line is easy - I suspect it is extremely difficult. But the ACLU has defined itself in such noble terms that it needs to try harder to live up to its values, to stay out of politics, and to simply defend civil liberties. A good example of this might be defending 2nd amendment rights as stridently as they (very properly) support 4th amendment rights. They pick and choose too much, IMHO

The ACLU's organizational structure is the biggest liability to this, from what I can tell.

In my humble opinion, it has been the political Left that has been more inventive and active in recent decades in the arena of restricting free speech.

Righty conservatives tend to support the status quo (big surprise there). Thus, they oppose things like pornography, flag burning, racy/violent song lyrics, etc. These are the sort of topics that have traditionally been considered "beyond the pale" in polite public discourse. Their recent appearance in the media marketplace represents a change in the culture that conservatives resent.

The political Left has been far more active in trying to change the status quo, and thus inventing new and exciting limits on speech. Hence, campus speech codes, hate crimes legislation, the eradication of religious expression from public life, the "fairness" doctrine, sexual harrassment suits, bans on cigarette ads, banning Tom Sawyer for using "ni**er," hypersensitivity to anything "racial," etc.

Comparing the two groups, I have to say that I give the "respect for free speech" edge to the political Right. Most people on the Right see that there is an inherent value to the free exchange of ideas that supercedes the "comfort" of any individual or group. I don't see a lot of people on the political Left espousing that idea; in fact, they tend to advocate the exact opposite-- free expression can be abridged, any time, any where, if someone is offended. Unless, of course, if that someone is a Righty!

It is due to posts like these, that everyone, left or right, can have real respect for Eugene Volokh. I may not agree with Volokh on many issues. But I think he can be depended on to call them as he sees them, without ideology completely clouding his judgment.

(Which is not to say that I think that ideology has never clouded EV's judgment. I think that would probably be an unrealistic and impossible standard to hold anyone to. But overall, one get's the sense that EV makes an active effort to get at the truth, regardless of ideological inclination.)

Note that the commenter said, "Most of the examples of government attempts to suppress political speech seem to have come from the political Left." (emphasis added) Many of the counterexamples given are of efforts from the right to (1) suppress expressions that are not primarily political and not targeted because of their political content, if any (e.g., sexually related speech), (2) not speech but rather expressive conduct (e.g., flag burning). If the comment is taken narrowly and if we don't go all the way back to McCarthy, then I think there is some truth in it.

Thank you, I'm a bit perplexed why Professor Volokh would miss that part. It could be because I had included an example of Al and Tipper Gore's attempts to regulate the music industry (cheered on the by the likes of Bruce Springsteen and opposed by the likes of Paul Harvey incidentally). In hindsight I probably shouldn't have included that example because it opened the door for trying to conflate laws against obscenity with "government attempts to suppress political speech" which was the point I was making.

As far as Professor Volokh's counter-examples, I don't believe they generally disprove my statement. McCarthy wouldn't even qualify as a counter-example because the only "suppression" of speech came from a "blacklisting" from private parties. That is not an example of a "government attempt." Anymore than the subsequent "blacklisting" of those who stepped forward to name names which went on for decades latter.

Also I wouldn't even concede Papish because the facts of the case show that (a) the University had earlier placed the "student" on probation for the distribution of obscene materials and not her political views and (b) there isn't any evidence that the administrators who enforce the policy were part of the "political right."

Professor Volokh seemed to completely miss the examples I gave of the Wilson and Roosevelt administrations which were quite active in using the force of government to censor political speech (even though he thought it worthy to mention lone examples of private individuals supposedly supporting suppression of "antiwar" speech).

I would agree that even though bans against flag desecration have enjoyed large popular support, it tends to be mostly conservatives who (wrongly) push for this issue. Of course the corollary to this would be bans against cross-burning which (unlike flag burning) have not been generally struck down by the Court even though they seem to both qualify as "symbolic speech." It seems to me that we're just as likely to find liberals who support the latter as we care conservatives who support the former and unlike laws against flag desecration, those bans are actually enforced.

So yes I stand by my original statement, even with the example of the foolish proposed constitutional amendment that would allow Congress to prohibit flag desecration (but never quite seems to get enough votes to pass even though it's supposedly so popular), most of the governmental attempts to suppress political speech have come from the political left rather than the political right.

It is due to posts like these, that everyone, left or right, can have real respect for Eugene Volokh. I may not agree with Volokh on many issues. But I think he can be depended on to call them as he sees them, without ideology completely clouding his judgment.

(Which is not to say that I think that ideology has never clouded EV's judgment. I think that would probably be an unrealistic and impossible standard to hold anyone to. But overall, one get's the sense that EV makes an active effort to get at the truth, regardless of ideological inclination.)

The political Left has been far more active in trying to change the status quo, and thus inventing new and exciting limits on speech. Hence, campus speech
codes, hate crimes legislation, the eradication of religious expression from public life, the "fairness" doctrine, sexual harrassment suits, bans on cigarette
ads, banning Tom Sawyer for using "ni**er," hypersensitivity to anything "racial," etc.

Since hate crimes legislation does not per se constitute a speech restriction but rather, when properly crafted, increases the punishment for conduct which is already illegal, this example is not convincing, Wisconsin v. Mitchell (1993) upholding a Wisconsin bias crime enhancement statute was unanimous.
Regarding eradication of religious expression from public life, you might care to be more specific as to which speech restrictions you think proves a leftist tendency to censor private expression. Resisting the use of state power to promote religion, regardless of any Establishment Clause concerns, is not necessarily a restriction on the right of the individual citizen, but more often an argument against the exercise of state power in support of religion.

While I'm still not sure about hate crimes legislation, I do wish people trying to cite it as a speech violation weren't so dishonest in their portrayal of the rationale.

The rationale, simply put, is not simply punishing the sentiments because we don't like them. It is, rather, putting a higher penalty on crimes which terrorize a particular community or "send a message" of such terror or are aimed at creating things like racial tension. The rationale is that such crimes do far more harm than simply the damage to the victim, and more harm should equal more punsihment. As such, slogans like "but all crimes are hate crimes" are simply childishly ignorant to the actual debate. Not all crimes are meant to send messages beyond their immediate victims.

And the idea that we cannot consider intent and motive as elements of a crime in regards to their sentencing is, frankly, sort of laughable. We do it all the time.

The inlcusion of the ACLU was not an attempt at snark, rather curiousity. I do, in fact, admire the ACLU. I think that for the most part they try to uphold the principles involved (e.g. 1st Amendment) rather than look into the politics the parties, which is why you will often see them supporting unpopular causes on both the right and the left.

But it is also true that the vast majority of the people who work for the ACLU and volunteer for them are one the left side of the political spectrum.* I don't think many young conservatives dream of becoming ACLU lawyers. But I do know of some conservative (at least, libertarian) free speech absolutists.

So what is a good conservative analoguee for the ACLU?

No offense, but I don't think FIRE is a convincing analogue, both for reasons of *ahem* jurisdiction (college campuses) and subject matter (the vast majority of the cases they take).

*I would also concede that this may skew the cases they take, given scarce resourrces. Nevertheless, they are more likely to defend the principle the ideology.

PS- I looked at Eugene Volokh's study, which was interesting. I would, however, make the same claim against it that he discounts in footnote 4, which is that a borad survey of cases necessarily blends together subtle legal issues. Also, the methodology (1 point here, 1/2 point there, 1/6 point there) while internally consistent and reasoned out is, IMO, arbitrary both in value (absolute) and sometimes in assignment. This tells me nothing about future 1st Amendment cases in general (other than Breyer is weseally, but I knew that).

The left is definitely worse than the right when it comes to free speech, and two members of the VC itself have provided us with ample evidence. First professor Volokh with his Freedom of Speech vs. Workplace Harassment Law and David Bernstein with his book You Can't Say That. Most of the examples they cite of the government limiting speech come from the left.

Than again why we do we have to limit ourselves to the US? Europe, the UK and Canada have hate speech laws and these don't come from the right. The UK seems to be the worst because they selectively enforce their laws. If a Christian should disparage Islam he breaks the law and it often gets enforced against him. But when Muslims say ever more vile things about Christians, Jews, homosexuals, and women the government seems to look the other way.

On the Continent the same goes on, but with somewhat less hypocrisy. On June 10, 2004 Brigitte Bardot was convicted by a French court of "inciting racial hatred" and fined 5,000 €, which was the fourth such conviction/fine she has faced from French courts. Her book A Scream in the Silence also referred to homosexuals as "fairground freaks" and she condemns the presence of women in government. In her defense she said in a letter to a French gay magazine, "Apart from my husband—who maybe will cross over one day as well—I am entirely surrounded by homos. For years they have been my support, my friends, my adopted children, my confidants." She is also a supporter of Jean-Marie Le Pen founder of the National Front Party. So there is a political component to her free speech troubles as well.

Moving over to Italy we find Oriana Fallaci facing criminal charges over her book The Rage and Pride. But one of her tormentors, Adel Smith, President of the Muslim League of Italy was never charged with defaming Christianity after he referred to a crucifix as a "miniature cadaver" during his 2003 efforts to have depictions of Christ on the Cross removed from Italian schools. He has called for the destruction of Giovanni da Modena's fresco The Last Judgment in the 14th-century cathedral of San Petronio in Bologna, Italy, because it depicts the Muslim Prophet Muhammad in hell.

We could go elsewhere for material, but that's enough. There is no question that the left is a far greater threat to free speech both here and especially abroad. What make it particularly ugly is the tolerance by the left for those trying to use free speech to destroy free speech when they gain power.

A. Zarkov-
The left is definitely worse than the right when it comes to free speech, and two members of the VC itself have provided us with ample evidence. First professor Volokh with his Freedom of Speech vs. Workplace Harassment Law and David Bernstein with his book You Can't Say That. Most of the examples they cite of the government limiting speech come from the left.

Hmmm..... let's see.... how did Eugene Volokh begin this thread.... it seems like only yesterday....

"My sense is that at least from the 1950s to somewhere around the 1980s, the left has generally (not entirely, but generally) been more speech-protective than the right; since the 1980s, matters seem to have roughly equalized (recognizing that it's impossible to measure things precisely), but there still remain plenty of calls for restrictions from the right."

Always good to see a non-partisan thread diverted by invoking the original thread author! Zarkov gets the brass ring today!

I realized that my earlier comment re: your study might seem a little (um) dismissive, which was not my intent. I realize that a lot of work went into it. However, I have three major issues with it:

1. I don't like 'survey' studies of cases, unless narrowly tailored, and I think the issues here are too subtle for this type of survey.

2. I don't know that I agree with your methodology for assigning point values. It seems arbitrary, and while I believe it was done in good faith, I wonder how the end-results would change if you gave different vaules for (example) concurrences or if you had others rate the opinions.

3. Finally, there is some disagreement about free speech implications (going to issue 1). I think that a breakdown of categories (1st amnendment implicated, expressive conduct, or even political or commercial speech) may be more useful than the broad '1st amendment' category.

I believe that hate crimes legislation belongs on this list for very good reasons-- it has the effect of stifling the free discourse between people. Add to this the fact that "hate crimes" tend to be enforced in very slanted and predictable ways, and you have a perfect vehicle for supressing free speech-- a bit of legal machinery that can be supported (in the abstract) by arguments that are completely irrelevant to the way the real world operates. Afterall, who can be opposed to white crackers using the N-word? And as soon as anyone expresses the slightest hesitation about the wisdom of hate crimes, you throw that argument in their face.

The same with sexual harassment lawsuits. These also tend to be justified one way, but enforced another (less noble) way. The net effect of the entire sexual harassment industry has been nothing more than to make every male in America anxious that some harmless joke will get blown out of proportion and ruin his life. But does the knife cut both ways? Heck, does the knife cut both ways even for white males? Let's ask Bill Clinton that! But first, ask ourselves, if Newt Gingrich was accused of all the things Bill has been, would the punishment meted out have been the same?

But first, ask ourselves, if Newt Gingrich was accused of all the things Bill has been, would the punishment meted out have been the same?

I thought that punishments in the US were meted out based on what was proved rather than what was accused.

In addition, to those who suggest that the right does not suppress political speech, how else would you describe the mass arrest and imprisonment in New York of more than 1800 political protesters during the Republican convention, following which substantially all charges were dropped or defendants were exonerated. Or, for that matter, the compilation by the current administration of the names of non-violent people and groups who have expressed anti-war views? You don't have to push for laws banning certain types of speech if you are willing to break the law to suppress it.

Would it be relevant to this discussion to consider the federal grants process as a facilitator/inhibitor of "free speech?" I am thinking, for example of grants which support scientific or artistic endeavors.

Generally, the Right have historically been more hostile to free speech while the Left has been supportive of free speech. The problem is that that undeniable historical tendency often clouds specific issues. The Left tends to think that they never restrict free speech while the Right is often unable to respond to baseless charges of speech suppression.

The most intrusive limits on free speech come from the "hostile environment" portion of sexual harrassment laws. Hence, employees must periodically be subject to "re-education" by their employers to avoid liability on these grounds. In addition, we now prosecute little old ladies for advertising that they want a Christian roommate.

I see that most of the examples of attempted suppression of free expression from the right are from decades ago.

And restrictions on anti-abortion speech, including restrictions that go beyond simply banning the blocking of abortion clinics, have generally come from the left.

But what about restrictions on pro-choice speech? Consider Rust v. Sullivan, for example (doctors at certain federally-funded clinics cannot give patients information about abortion, even if the patients request it). That comes from the right, yes?

And where do we put compulsory speech, like requiring abortion providers to give certain state-sanctioned information to those seeking an abortion? That also comes from the right, yes?

Don't statements such as these just reveal the flaw of the left-right model?

I mean it really breaks down like this:

Progressives: Favor speech restrictions against their opponents and those people who oppose their policies and englightment
Civil Libertarians: Oppose speech restrictions
Social Majoritarians: Whatever the majority wants
Liberals: Oppose speech restrictions

I suspect that many of the posts in reply to Eugene's essay on the HP come from Progressives (both as would self-identify and as an independent observer would classify them).

So lets be clear here: "The left", whatever that is, doesn't call for lots of speech restrictions, but Progressives do adovocate speech restrictions frequently.

motive doesn't matter? so, one can't question the motivations of "peace marchers" who also hold signs up saying death to jews? one can't question why certain forms of "free speech" were high on the ACLU's list? who founded the ACLU? the ideological basis of its founding? I'm sorry I can't uphold such a high standard of free speech purity.

Comparing the two groups, I have to say that I give the "respect for free speech" edge to the political Right. Most people on the Right see that there is an inherent value to the free exchange of ideas that supercedes the "comfort" of any individual or group.

In the recent-past, the Hillsborough County Commission (Tampa, Florida) voted to restrict public libraries from displaying anything relating to 'gay pride' (small 'g', small 'p' -- meaning not just the annual Summer event, but pride in general.) This vote came after one library set up a display of generally non-sexual works by respected, openly gay authors to coincide with the annual gay pride month of June. Apparently, the council was worried this sort of display might upset "the 'comfort' of any individual or group." All but one member of the council is conservative. The lone liberal objected.

Social conservatives do not, in my lifetime, have a good history of respecting free speech where that speech is uncomfortable to them. This is especially true in areas relating to religion, sexuality, and nationalism. Restrictions on speech relating to positive information about homosexuality, Darwinism, abortion, non-christian religions, and political dissent seem to be their weakness.

Some of these are quite surely non-status quo. But restrictions on teaching established science (Darwinism) are against the status quo.

And by no means assume I defend the Left here. The desire to control debate is a human thing and not one limited to any political persuasion. I wonder if there is any correlation between the minority/majority ideology and support for/restrictions on free speech? It would seem to me the minority would be served best by free speech as a means to propogate their ideas whereas the majority remains in power in part by limiting the effectivness of the minority message. (President Bush appears to have taken this to a new level of art.)

In Montgomery County, the schools are debating the sex -ed curriculum. Originally, there were statements that some people are gay and can lead happy productive lives, and that gay people can marry in Massachusetts.

The right wing had a fit, filed a lawsuit, and stopped it. The compromise is that teachers can now say that some people are gay, and that's pretty much all they can say about gays.

In other jurisdictions, teachers are prohibited from saying anything at all about gays. All these censorship of teachers' comes from the right wing. I don't see how any of it is good.

From the 1950s until the 1980s the left was all for political free speech as it served their interests at the time, but once they got power and influence in academia and elsewhere, they try suppress their critics or anyone who wants to say anything they don't like. Look at what happened in Berkeley with Jerusalem Bus 19 in June 2005. The far left's long ago support for free speech seems a little disingenuous in today's world doesn't it?

You're correct. The right certainly wants to censor discussions of homosexuality in the classroom. But the classroom is a special place because students, particularly young students, are captive and impressionable, and schools do operate in loco parentis, so it's natural that parents would want to exercise some control over classroom content.

"How does that prohibition work? Are teachers forbidden from speaking on homosexuality outside the workplace?"

Yes and no. In many of these curriculums, it says that teachers may not say anything at all about homosexualiy, and if asked by a student, he may not respond. Therefore, even if the exchange should occur after school hours, or at a chance encounter at the mall, the teacher is nonetheless bound to the curriculum. However, it does not prevent the teacher from writing a letter to the newspaper or discussing the topic with their friends.

And yes, I agree parents should have some control over what is taught in a curruculum. Of course! But in many of these instances, you have a fight between those parents who want homosexuality taught in a truthful light, and those who want it either ignored, or explained as a perversion. Who wins often depends on who has the ear of the school board. To me, this is akin to having parents argue about whether the earth is flat or not, and having a school board vote on that. It's simply ridiculous, and harmful as well, especially to gay kids in school. And if taught that homosexuality is a perversion, it's isn't a big leap to have students think that it's okay to beat up on gay kids, especially, when that message is reinforced on Sunday.

On the issue of homosexuality, it is almost always the right that wants to ban that speech or control it somehow.

Sorry, just not impressive. It is much harder to fight for the principle of the 1st Amendment when you disagree with the subject of the speech (or inherently expressive conduct).

When conservatives support flag burning, I'm impressed.
When liberals support religious and bigoted speech, I'm impressed.

Your logic was- here's an example of the far left, restricting free speech, therefore the left restricts free speech, therefore "they try suppress their critics or anyone who wants to say anything they don't like." If you added a 'Libs suck' statement to the post, it would've been perfect on RedState. And if used the same syllogism to bash conservatives, you could've posted it to atrios.

My sense is that at least from the 1950s to somewhere around the 1980s, the left has generally (not entirely, but generally) been more speech-protective than the right

The prblem with this statement is it is referring to what the left says not what they do. Both sides (left/right) attempt to suppress speech. The right from the 50's to the 90's were fighting for the most part to keep existing restrictions in place. Durring the same time the left were atrempting to change what was acceptable and suppressing previously acceptable speech (prayer in school, sexual harrassment, hate speech).

Also do not forget that the platform of the Commnuist party in the 50's was for the armeed/violent overthrow of the Government. That is a little more then being a Republican/Democrat. I think it would qualify at treason or sedition. So restrictions against a violent foreign controled group is not the same at banning a libertarian.

The far left has always wanted to restrict speech. During the popular front days they played the part of FDR liberals. The center left was pretty good on free speech in the 1950s and very early 1960s. However since the late 60s, but especially after 1980 even the center left has gone off the deep end. For example, Deval Patrick, the current governor of Mass, who as Assistant Attorney General in the Clinton Administration official ordered the DOJ to bring lawsuits Berkeley residents who opposed conversion of the Bel Air Motel to a homeless shelter. This after HUD first made life miserable for the residents, but finally gave up and realized the right to petition the government was a First Amendment right not trumped by the Housing Rights Act. The details are in David Bernstein's book You Can't Say That.

It's obvious that no matter how many examples I give you of where the far left, the center left and just plain old liberals are trying to restrict free speech in current world, it won't be enough.

"To me, this is akin to having parents argue about whether the earth is flat or not, and having a school board vote on that."

The school board is not legislating reality. They are making a policy of what is to be taught in school. Do you think a teacher can discuss race and IQ in the classroom? Do you think a teacher can tell the class that blacks in America have a measured IQ that is 1 standard deviation below whites? The parents or the community doesn't want that discussed in class. Furthermore students can learn outside of school. In fact most learning occurs outside of school, so no one is really being harmed. The curious find out. The incurious don't care and can even get to be president.

Please give me cites to all the cases you must know about in which a court found a hostile work environment based solely on the speech of the defendant(s), and describe what the speech was. I'm quite curious.

As to "re-education," it's true that there are some "consultants" who market seriously market rather goofy/alarmist "training sessions" to gullible employers, but these courses (at least the ones I've seen) don't reflect anything like the actual state of the law.

I also argue on that Web page that even a few such cases (and there are more than a few) can pressure reasonable employers into restricting employee speech, for fear of legal liability. And I've written on a related page why resting a liability decision even partly on otherwise protected speech violates the First Amendment, and unduly deters such speech.

EV: Thanks for the webpage cite. I'll look at it. I note, though, that I asked for cases in which plaintiffs WON a hostile work environment case based SOLELY on speech. Your description in the above post refers to cases "based largely on speech (or could be based, in the case of denials of summary judgment)."

Of course "largely" based on speech implies that there were overt acts as well, and prevailing on an initial summary judgment is not the same as a court finding that there was a hostile work environment, much less that the plaintiff won the litigation at the end of the day. As I'm sure you know, employment discrimination plaintiffs do worse than pretty much any other category of civil litigants at pretty much every stage of litigation.

So I'm not sure even based on your own description that you even have a few (much less more than a few) cases that met my original criteria. But I will read with interest.

I agree that it's interesting to see what employers do in the real world, but I'll note that in some cases, the goofy stuff they do is in response to what consultants convince them is their potential liability. some of the training programs employers wind up buying into would be funny if they weren't so misleading as to the actual state of the law. Did you ever see "The Office" episode on this general subject?

I personally don't buy the First Amendment argument (I don't expect you to be shattered by this revelation), although I did see you argue it as well as it could be argued at a AALS meeting some years ago.

In Montgomery County, the schools are debating the sex -ed curriculum. Originally, there were statements that some people are gay and can lead happy productive lives, and that gay people can marry in Massachusetts.

vs

Do you think a teacher can discuss race and IQ in the classroom? Do you think a teacher can tell the class that blacks in America have a measured IQ that is 1 standard deviation below whites?

Anybody see the obvious difference between the two?

I understand the principle behind the arguement, but sometimes people get lost so much behind the principles/theoretical part of the arguements that they forget to see what is actually happen in the world based off their theoretical ideas.

EV: I strongly disagree with your statistical methodology in analyzing recent votes. Kennedy is so obviously an outlier in your data set that it is improper for you to count him as a conservative without noting the impact of his outlier status on your numbers. He is nearly 15 points above anyone else, while everyone else is decently distributed around a core. Indeed, Kennedy lies so far outside the pack that he is the only reason the conservative average is higher than the liberal average. Without him, the conservative average is 49.3 and the liberal average is 52.5.

Moreover, Breyer is as much an outlier among the liberals as Kennedy is among the whole pack. Breyer's outlier status by itself pulls down the liberal average. Omitting Breyer raises the liberal average to 56.7.

Looking at the median instead of the mean--another way to deal with the outlier problem--produces similar results. The liberal median (counting Breyer) is 54.7, and the conservative median (counting Kennedy) is only 49.6. So why did you choose to rely on the mean instead of the median and not even note the distorting effects of Kennedy's obvious outlier status and Breyer's partial outlier status?

I'd also question your decision to lump Kennedy and O'Connor with conservatives, rather than treat them as a third category: moderates or swing voters. If you re-evaluated your data that way, you'd have the following results:
______mean___mean (w/o otlrs)___median
lib_____52.5___56.7 (w/o Bry)___54.7
mod___59.6___44.7 (w/o Ken)___59.6
con___50.8___50.8____________49.6

The problem with this approach is that Kennedy's outlier status inflates both the mean and median of the moderates, because there are only two data points, Kennedy and O'Connor. And omitting him simply makes O'Connor's number the moderates' number.

Looking at all the different ways to analyze the data, I'd say all you can safely say is that ideology doesn't correlate very strongly at all with votes in free speech cases among these members of the Court. That's a reassuring insight, actually. You might go further and say, in light of all the different ways to analyze the data, liberals on this Court have a slightly greater probability of supporting a free speech claim, with the qualification that Kennedy is a maverick and Breyer is oddly out-of-step with other liberals. But those are very different conclusions that the ones you draw from the same data.

It also should be obvious that this data provides no sound basis whatsoever for making generalizations about liberals and conservatives in the population at large or even among judges generally.

The flag-burning amendment is the purest form of political fluff in existance. It affects only two classes of people: those who just can't live without burning the flag, and those who just can't live with those who burn the flag not being clapped in irons. Which all told, is about 2% of the population (ya, that figure's about as scientific as EV's "My sense is that...".

To take a fluff nonissue like that and make it out to be "just as bad" as the grievance industry can't be explained away as anything short of dishonesty. Its like putting a bucket of lead on one side of the scale, a feather on the other, and declaring the weights equal because there's an example of one of each.

You disagree? Then answer this question: Suppose you had a choice of two really bad bills, and you could only block one. Here are your choices:

1. A law or amendment that prohibited the burning of flags.

2. A law, amendment, or universal rule enforced by lawsuit that provided for:
(Hate Crimes) - Putting a flag of "showed disrespect for America" in a student's permanent college record if they protest against American policy too much.
(AA) - Employers having to create commissions, disclaimers, and 'mission statements' to prove they are taking supporting America seriously, lest they leave themselves vulnerable to lawsuits.
(Hate Crimes) - America's universities having a alphabet soup of "Freedom Codes" whereby expressing contempt for, hatred for, and even in many cases simple crititicism of America was a violation.

I could go on, but those are some of the more egregious examples. So, which of the above would you choose to thwart? And would it be a no-contest kind of descision?